Affirmative action in college admissions goes back before Supreme Court

The US Supreme Court agreed on Tuesday to take up a potential blockbuster case testing the constitutionality of race-based admissions policies at the University of Texas.

The case, Fisher v. University of Texas (11-345), is being closely followed by conservative analysts who are hopeful the high court will use the Texas dispute to establish new constitutional limits on race-conscious affirmative action plans at public colleges and universities nationwide.

In announcing it would take up the case, the court also said Justice Elena Kagan would not take part in deciding the dispute. Before joining the high court, Justice Kagan served as solicitor general in the Obama administration.

Although it is unclear precisely when the case will be set for oral argument, the action brings the politically divisive issue of race to the high court in a presidential election year in which the nation’s first African-American president is seeking a second term in the White House.

The Supreme Court is being asked to reverse a lower court decision upholding the use of race in the University of Texas admissions program.

At the heart of the underlying lawsuit is whether the university violated the equal protection clause of the 14th Amendment by using race as a factor in deciding which student applicants to admit and which to reject.

Abigail Fisher, who is white, applied but was denied admission to the university in 2008. In her lawsuit she alleges that her academic credentials were superior to many African-American and Hispanic candidates who were admitted after receiving preferential consideration by admissions officers because they were deemed to be “underrepresented minorities.”

Lawyers for the university defended the school’s use of race in admissions, saying it is narrowly tailored to help the university achieve a critical level of diversity. They said the program was patterned on the affirmative action plan used at the University of Michigan Law School that was upheld by the Supreme Court in 2003.

The high court ruled for the first time in the Michigan case that student diversity could be a compelling interest justifying a state university’s use of race as one of many factors in admissions.

The University of Texas had maintained a race-conscious affirmative action plan until 1996, when a federal appeals court panel ruled that the use of race in admissions was unconstitutional. The state legislature responded by enacting the Top Ten Percent Law, which requires the University of Texas to admit the top 10 percent of graduates from each high school in Texas.

The law significantly boosted the level of minority enrollment at UT without any reliance on race as a factor in admissions. By 2004, black and Hispanic students comprised 21.4 percent of the incoming freshman class.

Nonetheless, in the wake of the Supreme Court’s decision in the Michigan case, Texas officials in 2004 decided to create a supplemental admissions program using race as one of several factors. It is that supplemental program that is being challenged by Ms. Fisher and her lawyers.

Fisher argues that the Top Ten Percent Law provides an effective means to boost minority enrollment without resorting to race-conscious admissions measures that are unfair to individual students and unconstitutional.

The university says its use of race as a selection criterion is necessary to achieve its goal of a minority student population in the same proportion as the minority population in Texas.

In addition, they say the school is trying to reach a critical mass of minority students in each classroom. That goal means the school is striving to admit enough qualified minority students to ensure there are more than two black and/or Hispanic students in every class for every subject taught at the university.

Critics say Texas’s race-based plan violates the constitutional requirement that any use of race as a factor in admissions must be narrowly focused. They say the goal of achieving a critical mass of minority students in every classroom opens the door to a perpetual, ever-expanding use of race in college admissions.

A dissenting appeals court judge said the attempt to achieve diversity at the classroom level opens the door to quotas, in effect, in undergraduate majors in which minority students are perceived to be underrepresented.

“Will the university accept this ‘goal’ as carte blanche to add minorities until a ‘critical mass’ chooses nuclear physics as a major?” asked Chief Judge Edith Jones of the Fifth US Circuit Court of Appeals. “Will classroom diversity ‘suffer’ in areas like applied math, kinesiology, chemistry, Farsi, or hundreds of other subjects if, by chance, few or no students of a certain race are enrolled?”

A federal judge and a three-judge panel of the Fifth Circuit upheld Texas’s race-conscious admissions plan. They said it comported with requirements established in the Supreme Court’s 2003 Michigan Law School decision.

“Considering UT’s admissions system in its historical context, it is evident that the efforts of the University have been studied, serious, and of high purpose, lending support to a constitutionally protected zone of discretion,” wrote appeals court Judge Patrick Higginbotham, upholding the program.

Judge Higginbotham added that “courts must afford a measure of deference to the university’s good faith determination that certain race-conscious measures are necessary.”

The full New Orleans-based Fifth Circuit split sharply over whether the case should be reargued before the entire appeals court. Seven judges voted to reconsider the decision. Nine judges voted to allow the three-judge panel’s decision to stand.

In her dissent, Chief Judge Jones accused the panel of “judicial abdication” for failing to subject the Texas plan to aggressive constitutional scrutiny. She said the Top Ten Percent Law had achieved minority enrollment in excess of 20 percent without resort to race-based methods. In contrast, the additional minority enrollment achieved under Texas’s race-conscious program was “tiny, and far from ‘indispensable.’ “

“It is one thing for the panel to accept ‘diversity’ and achieving a ‘critical mass’ of preferred minority students as acceptable university goals,” Jones wrote. “It is quite another to approve gratuitous racial preferences when a race-neutral policy has resulted in over one-fifth of university entrants being African-American or Hispanic.”

In 2008, the year Fisher submitted her application, 29,501 students applied to the University of Texas. Of those, 12,843 were admitted. Roughly half – 6,715 – eventually enrolled for classes.

Of the 6,715 enrolled students, 6,322 arrived from Texas high schools. The Top Ten Percent Law produced 5,114 of those students for admission.

That left approximately 1,200 spots open for some 16,000 Texas students who did not place in the top 10 percent of their high school classes. The competition for those spots was ferocious.

The university’s supplemental race-conscious admissions program admitted 58 African-American candidates and 158 Hispanic candidates.

In comparison, the Top Ten Percent program admitted 305 African-American students and 1,164 Hispanic students without using race as a factor.

“The university was able to obtain approximately 96 percent of the African-American and Hispanic students enrolled in the 2008 entering in-state freshman class using race-neutral means,” wrote Judge Emelio Garza, in a concurrence to the original decision by the three appellate court judges.

Judge Garza agreed with the outcome in the case given the Supreme Court’s Michigan precedent, but he disagreed with the underlying precedent. He said the university’s race-conscious program had achieved “an infinitesimal impact on critical mass [of minorities] in the student body as a whole.”

Garza said that under those circumstances there was not a compelling reason to justify the use of race in admissions, nor was such use narrowly tailored as required by the Constitution.